Whether the Department was justified in its decision to refuse access to records relating to the introduction of a provision in the Finance Act 2016 under sections 30(1)(a), 30(1)(c) and 37(1) of the FOI Act on the grounds that release of the records would prejudice the effectiveness of inquiries or disclose positions taken in negotiations or reveal personal information
Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
Background
In December 2016, the Minister for Finance introduced a provision into the Finance Act 2016 which amended the VAT Consolidation Act 2010. This provision was introduced in response to a VAT overcompensation issue in a particular agricultural sector. As this is a complex matter, perhaps the context is best explained by reference to the Minister's 23 November 2016 explanation to the Dail of the the rationale for introducing this provision (available at: http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2016)
"I would like to clarify that this legislation is an enabling provision only. It provides me, from 1 January 2017, with the power to exclude a particular agricultural sector from the farmers' flat-rate scheme by way of ministerial order. It does not exclude any sector from the flat-rate scheme from 1 January 2017; it merely gives me the power to make an order for any exclusion to apply. No agricultural sector will be excluded from the farmers' flat rate scheme on 1 January 2017. Before that can happen, the Revenue Commissioners must carry out a review of the sector and they will consider the business structures or models in place and the relationships between the parties involved. If they feel that the application of the flat-rate addition in this sector has resulted in and will continue to lead to over-compensation of VAT to those farmers, they will contact the persons involved and advise them accordingly. If those persons refuse to change the models or structures that give rise to the over-compensation of the flat-rate addition, a report will be forwarded to the Minister for Finance with a recommendation that the flat-rate scheme be withdrawn from the particular sector...Revenue has indicated to me that it would expect to commence any reviews that might be warranted from the start of the second quarter of 2017. I would urge any sector where there are issues of this nature to start the process of unwinding with immediate effect and to advise Revenue of its plans..."
Following the enactment of the Finance Bill 2016, the applicant made an FOI request on 28 December 2016, for the following records:
-Records created since January 2016 that show why it was decided to introduce a provision Section 46 of the Finance Act to amend section 86 of the VAT Consolidation Act 2010 to enable the Minister to exclude sectors from receiving the Flat Rate Addition. Please include any correspondence with Revenue on the topic and the complaint that has been made about abuse of the Flat Rate Addition by parties in the poultry sector. Please also include any records of lobbying on the proposed change in the Finance Bill on this issue.-
On 26 January 2017, the Department partially granted the applicant's request. It refused to release certain records or parts of records under sections 28, 30, 31, 33 and 37 of the FOI Act. On 28 February 2017, the applicant requested an internal review of the Department's decision. On 23 March 2017, the Department varied its original decision and released additional information to the applicant. On 16 May 2017, the applicant applied to this Office for a review of the Department-s decision.
During the course of the review the applicant, the Department and the Revenue Commissioners were invited to make submissions. In its submissions, the Department sought to rely on additional provisions (sections 29, 41 and 42) in support of its decision. This Office notified the applicant of the Department's additional submissions. Following communications with this Office, the Department released additional information to the applicant and the applicant confirmed in writing that he was willing to limit the scope of his request to the following records: 21, 27, 29, 30, 33, 43, 44 and 74. The Department maintains that the information withheld from these records is exempt under sections 30 and 37 of the Act.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties and the affected third party, and to the provisions of the FOI Act 2014.
Scope of the review
The scope of this review is confined to the following issue:
· Whether the Department has justified its decision to refuse records 21, 27, 29, 30, 33, 43, 44 in part and to refuse record 74 in full on the basis that the information refused is exempt under sections 30(1)(a), 30(1)(c) and 37(1) of the FOI Act.
Preliminary Matters
Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large. Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Analysis and Findings
The Records
Records 21, 27, 29, 30, 33, 43, 44 and 74 contain emails between Revenue and the Department and internal Department emails. I am limited in the description of the refused information that I can give as a result of section 25(3) of the Act. In general terms, the information concerns Revenue's position in relation to problems with how the flat scheme operates in a particular sector and possible solutions to those problems. The information also contains Revenue's position in relation to parties involved in the sector.
Section 30 - Functions and negotiations of public bodies
In submissions to this Office, the Department's decision maker states: "While I refer to section 30, it is specifically section 30(1)(c) of the FOI Act that is the provision relevant to the decision to refuse access to these records." In light of the Department's submission, section 30(1)(c) is examined in this decision. Section 30(1) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to-
(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be carried on by or on behalf of the Government or an FOI Body.
Section 30(1)(c) does not require any expectation of harm; it applies where the granting of access can reasonably be expected to disclose certain information. The wording of section 30(1)(c) extends to negotiations carried on by an FOI body other than the body making the FOI decision. The exemption is subject to a 'public interest override' i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.
The Department states that Revenue is involved in on-going negotiations with a particular sector to change practices that give rise to the over-compensation of the flat-rate addition. It states that the refused information reveals Revenue's position with regard to the flat rate scheme. According to Revenue, subsequent to the enactment of the 2016 Finance Bill, it commenced a process of meeting with parties operating in a particular agricultural sector. It states that the purpose of these meetings was to discuss practices in place that are giving rise to overcompensation of the flat-rate addition and to agree changes to these practices to ensure that the Minister is not required to exclude that sector from the flat-rates scheme. According to Revenue, meetings have taken place since the second quarter of 2017 and are ongoing. It states that agreements have been reached in relation to some practices; however, the process is midway to being finalised and negotiations are ongoing. Revenue argues that release of the records would have reveal its position in relation to practices which are subject to ongoing negotiations.
Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. This exemption does not contain a harm test unlike section 30(1)(a) and 30(1)(b). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions. An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement.
The Oxford English Dictionary defines the verb 'negotiate' as to "hold communication (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise". I am satisfied from information supplied in the course of this review that Revenue is still actively involved in negotiations with this sector in order to agree changes to practices resulting in VAT overcompensation. I also accept that refused information which is quite detailed and technical reveals Revenue's position in relation to the various practices which are the subject of ongoing negotiations and it reveals Revenue's position in relation to certain parties it is negotiating with. I find, therefore, that the information withheld from records 21, 27, 29, 30, 33, 43, 44 and 74 is exempt under section 30(1)(c) of the Act.
Section 30(2) The Public Interest
Section 30(2) provides that section 30(1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
The applicant argues that that the decision maker did not give adequate consideration to the public interest in the need for transparency on this issue which has been raised in the Dáil and the European Parliament.
The Department and Revenue argue that release of the withheld information could have a negative effect on Revenue's negotiating position which they argue would not be in the public interest.
Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to strengthen their accountability and decision-making. On the other hand, section 30(1)(c) itself reflects the public interest in protecting positions taken by FOI bodies for the purpose of negotiations.
Section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice negotiations and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2). In this case, the records were created between 12 and 18 months ago and I accept that they concern VAT issues which were the subject of subsequent legislation. However, it seems to me that the 'enabling provision' formed a backdrop for meetings between Revenue and the sector to agree changes without the need for a Ministerial Order removing the sector from the flat rate scheme. I accept that the records contain information which, if disclosed, could reasonably be expected to have significant negative consequences for Revenue's negotiating capacity with the sector and particular parties in the sector. In this case, significant parts of the record have been released, I am satisfied that the public interest is served to some extent by such release and I find that on balance, in the circumstances of this particular case, the public interest would not be better served at this point in time by release of the information to which section 30(1)(c) applies.
As I am satisfied that the information withheld from the records is exempt under section 30(1)(c), it is not necessary to also consider section 37(1).
Decision
Having carried out a review under section 22(2) of the FOI Act 2014, I hereby affirm the Department's decision. I find that section 31(1)(c) of the FOI Act applies as release of the withheld information could reasonably be expected to disclose positions to be taken for the purpose of negotiations being carried on by an FOI Body and the public interest would, on balance, be better served by refusing the release of the withheld information.
Appeal
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.
Elizabeth Dolan
Senior Investigator
